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TMI Blog1941 (4) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... ured by a first charge on all buildings, sheds, structures and machinery, that the lessor may construct or erect on or within the demised premises. There is also a proviso for re-entry on failure to pay the royalty or on breach of any of the covenants. Sometime in 1918, a newly incorporated private company called the Sinidih Coal Concern Ltd., acquired the lessee's interest under the sub-lease. The bulk of the shares in the new company belonged to Jogendra Mukerjee, and sometime in 1929, after Jogendra's death, the Appellant acquired these shares from Jogendra's sons. On 6th August 1932, Sm. Bindha Debi, the lessor, enforced her security under the sub-lease by obtaining a mortgage decree against the company for Rs. 28,900. In November 1934, the share-holders in the company passed a voluntary winding-up resolution, one P.K. Mitra being appointed voluntary liquidator, and, by a subsequent resolution, the liquidator was given power to carry on the business until the company could be sold as a going concern. On 16th April 1935, the right, title and interest of the company in the colliery was sold under the Bihar and Orissa Public Demands Recovery Act for arrears of cess for R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther disposed of or not and including all fees actually paid to Counsel and all costs of conference, all such costs to be taxed as between attorney and client will be paid by the said Chandi Prosad Pal and Probodh Lal Mukherjee. 7.The Provisional Liquidators are hereby discharged. They would forthwith make over possession of the colliery and of the books of the company in their possession to the Official Liquidator. They will further render an account of their dealings in respect of the said company. They will be paid their usual remuneration and the actual expenses incurred by them out of the funds in their hands and for stock of coal and/or out of the assets of the company on which they will have a first charge for such payment. 8.All civil and criminal proceedings including appeals pending in various courts in respect of the company are hereby abandoned by Ram Ranjan Bhattacharjee and the other parties interested therein. 9.Decree passed in favour of Raja Nil Kanta Narayan Singh against Sm. Bindhya Debi and others and assigned in favour of Chandi Prosad Pal stand good. 10.Assignment of rent and royalty by the said Raja Nil Kanta Narayan Singh in favour of Chandi Prosad P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount payable to the Improvement Trust from the said Improvement Trust as soon as the Award is published less the amount payable by the said Satyendra Mohan Mullick. The said amount so realised from the Improvement Trust will be adjusted against the amount due to Rai Sahib Chandanmull Karnani. The said Probodh Lal Mukherjee undertakes to execute all documents as may be necessary to properly effectuate the charge hereinbefore mentioned and the guarantee mentioned in the previous clause hereof on or before 31st January 1938. 17.Rai Sahib Chandanmull Karnani will have a first charge of the colliery belonging to the company for all amounts now due to him and for future rents and royalties. 18.A fresh Mining Lease in consultation with Mr. Sudhir Chandra Ray Choudhury and Mr. Probhash Chandra Roy upon the existing terms as to rate of rents and royalties and with the residue of the period with addition and alteration as necessary will be executed by the par ties. The company will pay all costs of Rai Sahib Chandanmull Karnani of and incidental to the execution of the said lease. 19.Liability of Anath Nath Sadhu in respect of his dealings with the company is hereby discharged. Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foresaid agreement was entered into between the parties thereto in the mistaken belief that the company was still then the owner of the leasehold interest in the colliery". Later on, in the plaint it is stated that the plaintiff came to know on or about 23rd January 1939, of the sale of 19th December 1935 to Deben Roy. There is a further statement that Deben Roy assigned his interest in the colliery to one Biseswar Chatterjee on 6th December 1938, who, on the strength of the said assignment, took possession of the colliery on 20th January 1939, by ousting the Official Liquidator, by reason whereof the interest of the company in the colliery has been irretrievably lost. The relevant allegations in the written statement are these: There is a denial of the mistaken belief. As regards the sale under the Public Demands Recovery Act, the Respondent states that the Appellant was all along aware of the sale to Deben Roy, who is a clerk employed by the Appellant's pleader. He charges the Appellants and Chandi Prosad Pal with conspiracy, and alleges that Deben Roy is their benamidar, as also Biseswar Chatterjee, to whom Deben has assigned the colliery. Paragraph 18 of the written stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying the Certificate Officer the cess dues. Another resolution proposed by the Appellant at a similar meeting held on 4th January 1936, explicitly refers to a sale of the right, title and interest in the colliery, under the certificate procedure. As the learned Judge points out, although there is some doubt whether the first or second sale is referred to, this is really of no importance, as the Appellant's suggestion is that he was ignorant that there had been any sale at all. Indeed learned Counsel for the Appellant does not now dispute that his client had notice of the sales, but I understand him to argue that possibly he was under the mistaken belief that the sales had not affected the title to the colliery. However, this suggestion need not be seriously considered, as the Appellant has chosen not to go into the witness box, where he might have explained to the Court exactly what his state of mind was. The learned Judge next deals with the question of consideration for the guarantee. It is to be noted that neither absence nor failure of consideration is alleged in the plaint, nor was any issue framed on this point. Now, in my opinion, the suggestion with regard to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , he could only do so by means of a separate suit. In other words, the two orders of 20th June and 22nd August 1938, are without jurisdiction and inoperative. Now the embarrassment that is likely to be caused if a litigant, who has consented to one order, and has unsuccessfully resisted another and not appealed against it, is to be permitted to question the jurisdiction of the Court to make these orders by a separate suit, is obvious. This is not one of that class of cases that (?) sometimes in India, where there is, or is said to be, a conflict between Courts of concurrent jurisdiction but different rank. The orders were made by this court as a winding up Court under the Companies Act, and the suit is brought in this Court in its Ordinary Original Civil Jurisdiction. The position seems to me to be the same as though in England an action were brought in the King's Bench Division of the High Court of Justice to have an order, made by a judge in a company matter in the Chancery Division, declared null and void. Learned Counsel for the appellant was asked if he could point to an action of this character, and he was unable to do so. In my opinion, Mr. Banerjee is right when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent are the consequences of failure to comply with statutory requirements in the assumption and in the exercise of jurisdiction. The authority to decide a cause at all and not the decision rendered therein is what makes up jurisdiction and when there is jurisdiction of the person and subject-matter the decision of all other questions arising in the case is but an exercise of that jurisdiction. The extent to which the conditions essential for creating and raising the jurisdiction of a Court or the restraints attaching to the mode of exercise of that jurisdiction, should be included in the conception of jurisdiction itself is sometimes a question of great nicety, as is illustrated by the decisions reviewed in the order of references in Sukklal v. Tarachand [1905] ILR 33 Cal 68 and Khosh Mahomed v. Nazir Mahomed [1905] ILR 33 Cal 352 see also the observation of Lord Parker in Raghunath v. Sundardas [1914] ILR 42 Cal 72 . But the distinction between existence of jurisdiction and exercise of jurisdiction has not always been borne in mind and this has sometimes led to confusion. (See Mabulla v. Hemangini [1910] 11 CLJ 512 and Moser v. Marsden [1892] ;LR 1 Ch. 487 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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